Citation Nr: 1613590 Decision Date: 04/04/16 Archive Date: 04/13/16 DOCKET NO. 12-11 274A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to the assignment of a separate evaluation for voiding dysfunction associated with multiple sclerosis, for the time period prior to November 4, 2011. 2. Entitlement to the assignment of a separate evaluation for diplopia, with saccadic pursuits and nystagmus associated with multiple sclerosis, for the time period prior to November 2, 2010. 3. Entitlement to the assignment of a separate evaluation for bowel dysfunction associated with multiple sclerosis, for the time period prior to May 31, 2010. 4. Entitlement to the assignment of a separate evaluation for erectile dysfunction associated with multiple sclerosis, for the time period prior to November 12, 2010. 5. Entitlement to the assignment of a separate evaluation for dementia associated with multiple sclerosis, for the time period prior to April 28, 2006. 6. Entitlement to the assignment of a separate evaluation for multiple sclerosis, with weakness of the right lower extremity, for the time period prior to April 7, 2011. 7. Entitlement to the assignment of a separate evaluation for weakness of the left lower extremity associated with multiple sclerosis, for the time period prior to April 7, 2011. 8. Entitlement to an initial evaluation in excess of 70 percent for dementia associated with multiple sclerosis, for the time period prior to April 28, 2006. 9. Entitlement to an initial evaluation in excess of 20 percent for multiple sclerosis, with weakness of the right lower extremity, for the time period for the time period prior to September 8, 2014. 10. Entitlement to an initial evaluation in excess of 60 percent for multiple sclerosis, with weakness of the right lower extremity, for the time period for the time period beginning September 8, 2014. 11. Entitlement to an initial evaluation in excess of 20 percent for weakness of the left lower extremity associated with multiple sclerosis, for the time prior to September 8, 2014. 12. Entitlement to an initial evaluation in excess of 60 percent for weakness of the left lower extremity associated with multiple sclerosis, for the time period beginning September 8, 2014. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran had active service from August 1978 to August 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (RO). The issues of entitlement to increased initial disability ratings are addressed in the Remand portion of the decision below. FINDINGS OF FACT 1. The Veteran's claim for service connection for multiple sclerosis was received on January 7, 2005; service connection for multiple sclerosis was ultimately established effective this date. 2. A 30 percent disability rating for multiple sclerosis was originally assigned under Diagnostic Code 8018, effective January 7, 2005. 3. An April 2012 rating decision suspended the single 30 percent disability rating under Diagnostic Code 8018 for multiple sclerosis and assigned separate ratings for the Veteran's various residuals of multiple sclerosis with various effective dates after January 7, 2005. 4. The proper effective date for the assignment of the separate disability ratings for the Veteran's various residuals of multiple sclerosis is January 7, 2005, the original date of service connection. CONCLUSIONS OF LAW 1. The criteria for assignment of a separate evaluation for voiding dysfunction associated with multiple sclerosis, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 2. The criteria for the assignment of a separate evaluation for diplopia, with saccadic pursuits and nystagmus associated with multiple sclerosis, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 3. The criteria for to the assignment of a separate evaluation for bowel dysfunction associated with multiple sclerosis, effective January 7, 2005 have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 4. The criteria for the assignment of a separate evaluation for erectile dysfunction associated with multiple sclerosis, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 5. The criteria for the assignment of a separate evaluation for dementia associated with multiple sclerosis, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 6. The criteria for the assignment of a separate evaluation for multiple sclerosis, with weakness of the right lower extremity, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). 7. The criteria for the assignment of a separate evaluation for weakness of the left lower extremity associated with multiple sclerosis, effective January 7, 2005, have been met. 38 U.S.C.A. §§ 1155, 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400, 4.124a (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural History The Veteran initially filed a claim for entitlement to service connection for multiple sclerosis that was received by the RO on January 7, 2005. In a July 2005 rating decision, the RO denied service connection for multiple sclerosis. After the Veteran submitted additional evidence in August 2005, the RO confirmed and continued the denial of entitlement to service connection for multiple sclerosis in a March 2006 rating decision. In March 2006, the Veteran filed a timely notice of disagreement with the denial of service connection. In May 2006, the RO issued a statement of the case, and the Veteran perfected his appeal in June 2006. The Board denied the claim of entitlement to service connection for multiple sclerosis in a May 2009 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2010 Joint Motion for Remand (Joint Motion), the case was remanded and in July 2010, the Board then remanded the matter for additional development. Thereafter, in a December 2010 rating decision, the RO granted service connection for multiple sclerosis, assigning an initial 30 percent rating, effective January 7, 2005, the original date of claim. The 30 percent disability rating was granted under 38 C.F.R. § 4.124a, Diagnostic Code 8018. The Veteran filed a claim of entitlement to service connection for dementia, secondary to his service-connected multiple sclerosis that was received by the RO on December 22, 2010. The Veteran then filed a timely notice of disagreement in January 2011, in which he objected to the initially assigned single 30 percent evaluation for multiple sclerosis in the December 2010 rating decision. See, Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 8018, multiple sclerosis warrants a minimum disability rating of 30 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8018. The provisions of 38 C.F.R. § 4.124a provide that multiple sclerosis may also be rated from 30 to 100 percent in proportion to the impairment of motor, sensory, or mental function. In determining any additional disability, the Board must consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. In a July 2011 rating decision, the RO granted service connection for dementia associated with multiple sclerosis, assigning an initial 50 percent rating, effective December 22, 2010. In August 2011, the Veteran filed a notice of disagreement with the "effective date" assigned in the July 2011 rating decision. In an April 2012 rating decision, the RO suspended the single 30 percent evaluation, initially assigned effective January 7, 2005, under Diagnostic Code 8018 for multiple sclerosis and proceeded to assign separate ratings for the Veteran's residuals of multiple sclerosis. The RO granted entitlement to service connection for voiding dysfunction associated with multiple sclerosis, assigning a 40 percent rating, effective November 4, 2011. The RO also awarded entitlement to service connection for bowel dysfunction associated with multiple sclerosis, assigning a 10 percent rating, effective November 4, 2011. In addition, the RO granted entitlement to separate ratings for weakness in the right and left lower extremities associated with multiple sclerosis, assigning a 20 percent rating for each extremity, effective April 7, 2011. The RO also granted entitlement to service connection for erectile dysfunction associated with multiple sclerosis, assigning noncompensable rating, effective November 12, 2010. Finally, the RO awarded a 70 percent rating for dementia associated with multiple sclerosis, effective April 28, 2006. In April 2012, the RO issued two separate statements of the case, and the Veteran then perfected an appeal in May 2012. After issuing a supplemental statement of the case in November 2012, the matters were sent to the Board for adjudication. In a December 2012 rating decision, the RO awarded an effective date of May 31, 2010, for the award of service connection for bowel dysfunction. In a fax sent to the RO on May 23, 2013, the Veteran's attorney indicated that the Veteran disagreed with "effective dates" assigned for his service-connected right lower extremity, left lower extremity, voiding dysfunction, dementia, and bowel dysfunction disabilities. II. Effective Dates for Separate Disability Ratings The Veteran's appeal originated from the December 2010 rating decision that granted service connection and assigned an initial single 30 percent evaluation for multiple sclerosis, effective January 7, 2005. As noted above, the Veteran filed a timely notice of disagreement in January 2011, in which he objected to the initially assigned single 30 percent evaluation for multiple sclerosis. As a result, the April 2012 rating decision suspended the single 30 percent rating, initially assigned effective January 7, 2005, under Diagnostic Code 8018 for multiple sclerosis and proceeded to assign separate disability ratings and effective dates for the Veteran's residuals of multiple sclerosis as noted in the issues section above. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Generally, the effective date of an evaluation and award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Finally, the appeal also appears to be from the initial ratings assigned to disabilities upon awarding service connection, and the entire body of evidence is for equal consideration. Consistent with the facts found, the ratings may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999). Again, the Veteran's original claim for entitlement to service connection for multiple sclerosis was received by the RO on January 7, 2005. All of the issues with respect to the effective dates assigned derive from this claim. The December 2010 rating decision granted service connection for multiple sclerosis and a single 30 percent evaluation for under Diagnostic Code 8018. 38 C.F.R. § 4.124a, Diagnostic Code 8018. Ultimately, the April 2012 rating decision suspended the single 30 percent disability rating assigned effective January 7, 2005, under Diagnostic Code 8018 for multiple sclerosis and assigned separate ratings for the Veteran's residuals of multiple sclerosis. By doing this the RO was attempting to accurately rate all the separate manifestations of the Veteran's service-connected multiple sclerosis; in doing so, the proper effective date assigned should have been January 7, 2005, the initial date of claim for service connection. See, 38 C.F.R. § 3.400(b)(2)(i). Accordingly, an effective date of January 7, 2005 is warranted for the assignment of separate evaluations for: voiding dysfunction; diplopia with saccadic pursuits and nystagmus; bowel dysfunction; erectile dysfunction; dementia; weakness of the right lower extremity; and, weakness of the left lower extremity; which are all associated symptoms of the service-connected multiple sclerosis. ORDER An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for voiding dysfunction associated with multiple sclerosis. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for diplopia, with saccadic pursuits and nystagmus associated with multiple sclerosis. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for bowel dysfunction associated with multiple sclerosis. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for erectile dysfunction associated with multiple sclerosis. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for dementia associated with multiple sclerosis. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for multiple sclerosis, with weakness of the right lower extremity. An effective date of January 7, 2005, is granted for the assignment of a separate evaluation for multiple sclerosis, with weakness of the left lower extremity. REMAND The Board's decision above grants effective dates of January 7, 2005 for the various manifestations of the Veteran's service-connected multiple sclerosis. The issues involving entitlement to increased initial disability ratings for dementia, right lower extremity weakness, and left lower extremity weakness have not been considered with respect to this new effective date. Accordingly, the case is remanded for the following action: The Veteran's claims for entitlement to: a. An initial evaluation in excess of 70 percent for dementia associated with multiple sclerosis, for the time period prior to April 28, 2006; b. An initial evaluation in excess of 20 percent for multiple sclerosis with weakness of the right lower extremity for the time period for the time prior to September 8, 2014, and in excess of 60 percent thereafter; and c. An initial evaluation in excess of 20 percent for weakness of the left lower extremity associated with multiple sclerosis, for the time prior to September 8, 2014, and in excess of 60 percent thereafter must be readjudicated in light of the grant of effective dates of January 7, 2005 for the assignment of separate disability ratings. If any benefit on appeal remains denied, the Veteran and his attorney must be provided a supplemental statement of the case. After an adequate opportunity to respond has been provided, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until further notice is received; however the Veteran may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs